Several journalists were summoned to the criminal court on Friday via an order that described them as “defendants.”
But when they attended, High Court Justice Nicola Byer said that most of them had done nothing wrong.
Rather, she explained, she had brought them all to court to encourage responsible journalism and to issue a warning: Virgin Islands News Online and BVI News recently violated a 2014 court order by hosting online comments about ongoing trials, she said, and future violations could result in contempt-of-court proceedings.
Ms. Byer and Director of Public Prosecutions Wayne Rajbansie then chastised representatives of the offending websites, and they urged all the journalists to report responsibly on court proceedings.
In response, the journalists expressed their willingness to abide by court directives, but they also aired concerns about restrictions on press freedom and about the criminal summons used to bring them before the court.
Queen’s Counsel Dancia Penn, a former attorney general who was there to represent the Island Sun newspaper, expressed similar concerns, describing the proceeding as an “ambush” that she found “highly disturbing.”
For years, judges and prosecutors in the Virgin Islands have warned media outlets to carefully police online comments. But they have complained often that their warnings have gone unheeded.
The issue came to a head in March 2014, when Ms. Byer issued an order prohibiting all media houses in the territory from allowing online comments about ongoing trials.
Practically speaking, the order did not affect the Beacon: As a matter of internal policy, this newspaper does not allow users to comment on court stories that it posts online.
But on June 30 of this year, the Beacon received a letter from the High Court Registry addressed to “Editor-in Chief: BVI Beacon.”
The document, which was labelled “Summoms [sic] to Defendant,” referenced a “complaint” and stated that any online commentaries about ongoing trials should be removed from news websites.
Beacon Editor Freeman Rogers attended court on Friday morning as ordered, along with representatives from four other media outlets: the online-only sites Virgin Islands Platinum News, BVI News and Virgin Islands News Online, as well as The Island Sun, a print newspaper that also maintains a website.
The criminal assizes was under way, and the journalists were asked to wait outside while dozens of members of the jury pool entered the courtroom. After the jury pool was seated, the journalists were allowed inside and led to the jury box.
Recent court decisions
restrict press freedoms
During the past two years, the High Court has taken unprecedented steps that have restricted press freedoms in the Virgin Islands, often acting at the behest of prosecutors who say that irresponsible journalism can make a fair trial impossible.
The ensuing dialogue mirrors a debate that has played out in democracies around the world as courts struggle to balance two fundamental rights in the information age: the right to free expression and the right to a fair trial.
In the midst of these tensions, the VI court has cracked down on the media harder than most other jurisdictions.
Since the arrival of Director of Public Prosecutions Wayne Rajbansie in 2012, the court has implemented two restrictions that press-freedom experts say are highly unusual and may be firsts for any democracy: It has prohibited media outlets from hosting any online comments about ongoing criminal matters; and it has regularly shut the media out of sex-crime trials involving juvenile complainants.
Though prosecutors and judges have argued that these measures are needed to ensure fair trials in this small community, others have raised concerns that such steps may be unnecessarily restrictive and out of step with international standards of open justice.
High Court Justice Nicola Byer banned the online comments in March 2014 through an order that two news sites have since violated, she said on Friday after summoning journalists to criminal court to warn them about the issue.
Judges and prosecutors have explained that the ban is designed to ensure that jurors aren’t improperly influenced by poorly policed comments. They have also said that the order was handed down only after some media outlets ignored repeated warnings about responsibly mediating online discussion forums.
Ms. Byer told journalists on Friday that she frequently instructs jurors not to read the online news during trials, but she is unable to monitor them at all times.
“So the responsibility lies with those reporters who are reporting what happens in the court to ensure that one, things that are taking place in the absence of the jury are not reported and two, they do not encourage comments to be posted online which any juror reading can at all be swayed in their duty to this court,” she said.
The High Court has the authority to restrict the publication of information about court proceedings, but the blanket ban may be unprecedented globally as well as locally, according to information provided by the Vienna-based International Press Institute.
Courts in other democracies have restricted online comments in relation to particular trials, but Scott Griffen, the IPI’s director of press freedom programmes, stated this week that the organisation is not aware of any other democratic jurisdiction that has “categorically banned online comments during all ongoing trials.”
The IPI, he added, believes that such a ban falls short of striking the ideal “balance” needed in protecting citizens’ rights.
“A blanket ban on commenting on ongoing trials is, in our opinion, a disproportionate restriction on freedom of expression,” Mr. Griffen wrote in an e-mail on Monday. “Under international law, restrictions on freedom of expression need to be tailored to a specific purpose and must be absolutely necessary to achieve that purpose. Blanket bans, such as this one, do not meet that standard, precisely because they cast too wide a net: In addition to preventing forms of expression that could actually jeopardise the fairness of a trial or the integrity of the victim or otherwise constitute contempt of court, they may also silence perfectly legitimate (and protected) commentary and debate on social or political issues.”
During Friday’s court proceeding, Queen’s Counsel Dancia Penn, a former attorney general, also expressed concerns about restrictions to press freedom.
Though she did not specifically take issue with the comment ban, she referred to “what are seen as measures that are chipping away, chipping away at freedom of the press.”
She added that protecting citizens’ rights requires the court to achieve a delicate balance.
“We are in, I believe very firmly, a very delicate zone,” she said. “I think it is very important that we keep those scales of justice in balance, and the media has to do its part; the media has to be very responsible in how it reports.”
In recent years, the High Court has also restricted the press’s freedom to attend certain trials.
In November 2013, Mr. Rajbansie, the DPP, announced that his office had adopted a new “policy” of requesting that all trials involving sex crimes against juveniles be held in camera, effectively excluding the media and the public.
Since then, prosecutors have followed through, and High Court judges have granted their requests.
The DPP’s “policy” marked a departure from previous practice in the territory: In the past, VI reporters typically were admitted to sex-crime trials involving juveniles, though they frequently were given specific instructions as to the extent of the reporting allowed. For example, they sometimes were ordered not to report certain details that the court felt might lead to the identification of a child.
Internationally, it’s unusual for the media to be excluded for the duration of a criminal proceeding against an adult, experts told the Beacon at the time.
Holding matters in camera “is not common in England and Wales,” for example, according to Andrew Le Sueur, a professor of constitutional justice at the University of Essex.
In the case of sex-crime trials, it’s more common for courts to issue an anonymity order, “so while the hearings are open to the public, the judge prevents publication in the press of names of the parties,” Mr. Le Sueur wrote in an invited comment to this newspaper shortly after Mr. Rajbansie announced his office’s new policy.
The VI Constitution requires that criminal trials be held in public unless all parties involved agree otherwise. However, it also empowers the court to exclude other parties in certain circumstances, including cases where publicity “would prejudice the interest of justice” or where doing so is necessary to protect “the welfare of minors.”
There are related provisions in other laws: A clause in the Evidence Act, for example, allows a judge to order a trial for rape or any other sexual offence to be held in camera. Mr. Rajbansie has also cited the Children and Young Persons Act, which allows a judge to exclude the public and the media from court, “particularly during the evidence of the virtual complainant.”
Mr. Griffen told the Beacon this week that the IPI finds “the policy of banning the media from all trials of a certain kind or class to be problematic. Again, this does not seem to strike the proper balance between the rights in play.”
Typically, he explained, it is possible to prevent contempt-of-court infractions — such as “revealing identity or any other information considered unduly prejudicial to the rights of the victim or to the trial” — without banning the press from a trial.
During Friday’s court proceeding, the issue of the closed-door trials was not discussed, but Ms. Penn spoke generally about the importance of an open court.
“I believe it is extremely important that the criminal trial process remains, as the Constitution says it is, public,” she said, adding that the public has a “legitimate interest” in the criminal justice system. “The media has an interest in it, but it has to be balanced, it has to be responsible, it has to be fair, and in this very jurisdiction, My Lady, a lot of injustice has been done and continues to be done.”
For the next two hours, the High Court proceeded to wrap up the last day of the criminal assizes: Several cases were adjourned, the prison superintendent presented a report, and lawyers gave closing statements.
After the proceedings ended, the jurors were dismissed, but prosecutors stayed behind, as did Ms. Penn, the Queen’s counsel who was representing Island Sun Editor Vernon Pickering.
A few minutes later, Ms. Byer addressed Director of Public Prosecutions Wayne Rajbansie about the journalists present.
“I unfortunately do not have copies of the actual summons that was served, and I’m not sure who all were served,” she said, adding that she would need a record of who was present. “Do you have a record, Mr. DPP?”
DPP responded that
he did not, explaining that his office had been invited to attend after the court exercised its “inherent jurisdiction” to call the proceeding.
He recommended that Ms. Byer ask the journalists to state their names for the record, and she did so.
Then the judge explained why they had been summoned.
“I want to go on record that the nature of the summons that was issued by the court to the news agencies was not to take the form of any formal hearing, but to remind persons who are involved with this very large responsibility of reporting to the public what transpires in these courts that that responsibility must be born with a sense of … justice to all,” she said.
Some media outlets have fallen short in this regard, in part by violating the court order restricting online comments, the judge said, though she acknowledged that not all journalists present were at fault.
“I have no difficulty in the reporting of what has transpired [in court],” she added. “These are criminal matters and unless I have indicated that they should be held in camera, they are public matters, and the public is entitled to know what transpired.”
However, she said, her repeated warnings about online comments, which are often called “blogs” in this territory, apparently weren’t being shared among journalists.
“So I had to be speaking to one and then to another, and I thought that it may be prudent to have everybody here present before me at one shot so that I do not have to repeat myself; neither does any other court have to repeat themselves that it is not acceptable in relation to the blogging — the blogging — that you allow it to continue during the currency of a trial.”
She also explained the court’s reasons for restricting the comments, which she said can improperly influence jurors.
“We have nine men and women that sit in that box, and as much as I tell them do not go online I cannot stop them,” she said. “We just came from a period of elections. There was no way that I was going to be able to stop a jury that was sitting here in elections from going to see what was happening in their country, as much as I asked them not to.”
After a trial is concluded, she added, online comments about it are permitted.
As examples, the judge singled out VINO and BVI News, both of which she said had recently allowed online comments in violation of the court’s order. (Representatives from both media outlets later admitted that the sites had allowed such comments on at least one occasion, but they said they had done so by accident.)
The judge added that future violations could result in contempt-of-court proceedings.
“This, quite frankly, Mr. DPP, is going to be my last warning,” she said.
Gary Eleazar, a reporter from BVI News, asked if comments posted on Facebook are affected by the restriction.
“No: That is social media,” the judge responded. “Social media — WhatsApp, Facebook, Instagram — I can’t control. Those are the individuals’ personal indications of their personal opinions. What I’m saying is that you have control over the blogs that you can put, in terms of the official report of ‘This is what happened in court,’ and then you see all the blogs that come after. That is what I’m asking.”
Gordon French, a reporter from VI Platinum, said that he didn’t recall his news site being warned previously in relation to the court order.
“No, because you did not offend those principles,” Ms. Byer responded, “but I just wanted to have everyone here so I could make one say of it.”
Ms. Penn spoke similarly on behalf of the Island Sun. After giving a brief history of the newspaper, which was founded in 1962, the attorney explained that the Sun doesn’t allow any online comments on its website. Moreover, she said, it only covers court cases in rare instances — and then only after they conclude.
The newspaper, she said, “has been in continuous publication ever since it was first published, and it has never in its history been in front of any court on any matter, whether criminal or civil. My instructions are that it has never even had a warning.”
Though the newspaper is “in support of what the court is trying to do,” she said, the criminal summons was a “matter of deep concern” to Mr. Pickering and the newspaper’s owners.
“They want to affirm their position that they will do every single thing to uphold the administration of justice,” she said. “And they are concerned about the freedom of the press and about the freedom of expression and what are seen as measures that are chipping away, chipping away at that freedom of the press, and the consequences for the wider society of that.”
Ms. Penn added that she believes such matters will continue to be an issue in the future.
The DPP spoke next, echoing many of the judge’s concerns.
“To begin, it must be pointed out that these are not adversarial proceedings,” Mr. Rajbansie said, explaining that the journalists had been summoned because they play an important role in relating court proceedings to the public.
Though the DPP commended journalists who have handled their duties responsibly, he said that others have not met an acceptable standard.
Like Ms. Byer, he singled out BVI News and VINO, showing printed copies of articles and reading aloud several online comments he said were inappropriate or had been posted while trials were in progress.
The DPP also aired other complaints about the two sites. For instance, he suggested that BVI News had reported information that could have led to the identification of a child involved in a court case, an allegation that BVI News reporter Horace Mills later denied.
The DPP also took issue with a VINO comment that he said described a recent court proceeding as a waste of time.
“Believe me when I say that we are not about wasting time,” he said. “But if the public does not understand that from your reporting, it’s easy to leap and make this determination that the court is wasting time when it is the furthest thing from the truth. I could tell you, the DPP’s office, we work no less than 12 to 15 hours a day. My counsel and I are in chambers on a Saturday and a Sunday with regularity.”
Mr. Rajbansie then quoted from a letter he said he received from VINO owner Julian Willock following a discussion with VINO Editor Reuben Stoby, who attended Friday’s proceeding. Mr. Willock’s letter, he said, falsely accused him of threatening to shut down VINO.
“No one said anything that we’re going to close down Virgin Islands News Online,” the DPP said, adding, “And it is a threat that I do not take lightly, Virgin Islands News Online.”
The DPP also said that VINO had been cited in another court matter and “told to pay $1,500 in compensation,” but he did not provide details.
“What is interesting, this took place in court and we excluded the public and all other persons to protect [VINO] when the discussion was taking place, because we did not want other newspapers to sensationalise this issue, which then itself could have been contained in the court,” Mr. Rajbansie said.
The DPP then issued a strong warning.
“Let me say to all of you, and to VINO in particular, when I issue a threat it will be carried out,” he said. “When anyone threatens me as the director of public prosecutions — personally or my chambers — I will not take it lightly. And rest assured I understand full well contempt-of-law proceedings, as well as slander, defamation and libel.”
Friday was not the first time that VINO has faced criticism. Since it was launched in 2010, the news site has repeatedly come under fire for the quality of its journalism and for the anonymous comments that it hosts.
Last year, Mr. Willock was ordered to pay $20,000 after VINO was successfully sued for defamation through a claim that focused largely on anonymous comments posted underneath an article.
Questions have also surfaced about the existence of a VINO general manager named John Leonard, who the site claimed left the company this year.
In spite of such criticisms, the site has continued to maintain that its coverage is fair and balanced, and it has often claimed to be the victim of political persecution.
During Friday’s hearing, Mr. Stoby described VINO as an “aggressive” news site, but he said it is committed to responsible journalism and does not wish to be seen as “rogue.” He also apologised for VINO’s past mistakes and promised to do his best to prevent “lapses” in the future.
Mr. Willock, the VINO owner, was not present at the proceeding, and when contacted afterwards he did not respond to the DPP’s comments.
The DPP concluded on Friday by suggesting that VI journalists form a media association in order to self-regulate their profession.
“Because quite frankly there are good reporters in this room, good editors in chief, and then there are those who are pulling down your noble profession,” he said, adding, “You have a responsibility, and I want to urge all of you to take your responsibility seriously.”
After the DPP spoke, Mr. Mills, of BVI News, said he felt “ambushed” by the proceeding.
He then refuted the DPP’s allegation that a BVI News article could have identified a child involved in a recent court matter.
“There was absolutely nothing in the article to identify the child,” Mr. Mills maintained.
But the judge explained, “Mr. Mills, we are talking about inferences that are drawn in situations where there are dealings with children — both the victim and the accused.”
Mr. Mills stood by his claim, but the judge remained adamant as well.
“Mr. Mills, continue along the line of journalism that you are going, and you’ve heard the DPP, what he has said,” she said.
Mr. Mills later clarified that BVI News agrees that the media should be responsible and does not oppose the court’s decision to restrict the online comments.
“We are not an irresponsible media entity,” he said. “And I don’t think one or two cases should be used to judge a particular media house.”
Ms. Byer responded, “Let me go on the record and say it is not a judgment that we are passing against a media house.”
She added that she doesn’t read the online news “because usually it’s about me,” but it is often brought to her attention during a trial.
“It is unfortunate, Mr. Mills, that back-to-back, literally, it was BVI News,” she said.
Shortly thereafter, Ms. Penn rose again.
“I really did not intend to speak much longer, but I find that what has occurred here in the last hour is highly disturbing,” she said, adding, “I stand now not as a lawyer for the Island Sun, per se, but as counsel at the bar — and as senior counsel at the bar.”
After stating that she supports the court’s intentions and believes that online comments need to be controlled responsibly, the lawyer expressed concern about the court proceeding.
“There are objective problems with this process,” she said. “Because what has happened here is that people have been brought before the court in a criminal matter. Irrespective of what the DPP says, it is a criminal proceeding brought in the criminal jurisdiction of the court on a summons.”
Though she had not previously met Mr. Mills, she said, she agreed with his description of the proceeding.
“He used the word that he has been ‘ambushed,’ and he is absolutely correct,” she said. “And I say that as senior counsel, My Lady: Persons cannot be called to court, irrespective of who they are or what they do, without being told what the nature of the complaint against them is.”
She added that the summons, which she read aloud in its entirety, didn’t include the particulars of a complaint or identify a complainant.
“Part of why I say — and I’m deeply convinced — that we’re going down a slippery slope is that the rights of the media properly and fairly and accurately exercised cannot be challenged, and I was amazed at what I heard,” she said.
She added that she believed the attorney general should have been involved in the proceeding.
Ms. Penn closed by stressing the media’s duty to follow the law, report responsibly, and have “moral fibre.”
This journalist also spoke, outlining a brief history of the Beacon, seconding Ms. Penn’s concerns, and explaining that this newspaper’s website doesn’t allow online comments about ongoing trials.
He then asked the judge if there had been a complaint laid against him or the Beacon, and whether he was considered a defendant in the eyes of the court.
“No, Mr. Rogers,” she responded. “And as I said earlier at the beginning of this proceedings, I was not aware that BVI Beacon nor the Island Sun had actually online presence, so I was not aware that you would have been brought in to hear my little talk about what is expected, but having been brought I think now it is quite clear what is expected going forward.”
Mr. Eleazar, of BVI News, asked for further clarification on the formal summons the journalists had received.
The judge responded, “How the court summoned the parties here was not as in the matter to answer any charges against any of you: It was a means of ensuring that you would attend by the process of having been served with a court process.”
Mr. Eleazar asked what would have happened if one of the journalists had not answered the summons.
“I don’t know what position I would have taken, Mr. Eleazar: I’m not going to tell you that,” Ms. Byer responded, adding, “It is in the discretion of the court what would happen after people have been served and they have not come.”
Mr. Mills subsequently asked the judge about the authority under which the court had restricted the online comments, and she responded, “It’s called the inherent jurisdiction of the court, Mr. Mills.”
Finally, Ms. Penn asked Ms. Byer how the court would dispose of the matter.
“There will be no order made, Ms. Penn, in this regard,” the judge responded. “The parties were brought to court, they answered the summons. The matter has been disposed of. There is no further need to proceed in this matter.”